Citation Nr: 0601846
Decision Date: 01/23/06 Archive Date: 01/31/06
DOCKET NO. 03-19 029 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for residuals, fracture
of right great toe.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
April Maddox, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1964 to
October 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from August and September 2002 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Waco, Texas. The veteran testified before the
undersigned at a Travel Board hearing in November 2005. A
transcript of this hearing is associated with the claims
folder.
FINDINGS OF FACT
1. The RO has provided all required notice and obtained all
relevant evidence necessary for the equitable disposition of
the appellant's appeal.
2. There is no evidence of hypertension in service, or
within one year after service, and no competent medical
evidence linking the veteran's hypertension with his period
of service.
3. There is no evidence of a right toe fracture in service
and no competent medical evidence linking the veteran's right
toe disorder with his period of service.
CONCLUSIONS OF LAW
1. Service connection for hypertension is not established.
38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303,
3.307, 3.309 (2005).
2. Service connection for residuals, fracture of right great
toe is not established. 38 U.S.C.A. §§ 1110, 5107 (West
2002); 38 C.F.R. § 3.303 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
This appeal arises out of the veteran's claim that
hypertension and a right great toe disorder are related to
his service in the United States Navy from October 1964 to
1970. He essentially argues that he was first diagnosed with
hypertension during service, in approximately 1965. The
veteran also argues that he injured his right great toe
aboard the U.S.S. Long Beach in October 1968 and currently
suffers from residuals of that injury.
Veterans Claims Assistance Act of 2000
Before proceeding with an analysis of this appeal, the Board
must examine whether the requirements under the Veterans
Claims Assistance Act of 2000 (VCAA) have been satisfied.
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2005).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative, if any, of any information
and medical or lay evidence that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. §
3.159(b) (2005); Quartuccio v. Principi, 16 Vet. App. 183
(2002). Proper VCAA notice must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
ask the claimant provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R.
§ 3.159(b)(1). VCAA notice should be provided to the
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim. Pelegrini v.
Principi, 18 Vet. App. 112, 120-21 (2004); see also Mayfield
v. Nicholson, 19 Vet. App. 103 (2005).
The Board finds that VA satisfied its duty to notify by means
of a letter sent to the veteran in April 2002, prior to
adjudication of his claim in August and September 2002.
This letter informed the veteran of what evidence was
required to substantiate the claim and of his and VA's
respective duties for obtaining evidence.
It is unclear from the record whether the veteran was
explicitly asked to provide "any evidence in [his]
possession that pertains" to his claim. See 38 C.F.R.
§ 3.159(b)(1). Nevertheless, as a practical matter the Board
finds that he has been notified of the need to provide such
evidence, for the following reasons. The April 2002 letter
informed the veteran that additional information or evidence
was needed to support his claim, and asked him to send the
information or evidence to the RO. In addition, the July
2003 supplemental statement of the case (SSOC) contains the
complete text of 38 C.F.R. § 3.159(b)(1), which includes such
notice. Moreover, at the November 2005 hearing, the veteran
was informed of the type of evidence needed to support his
claim, but he did not indicate that he had any additional
evidence.
In short, the Board finds that the duty to notify the veteran
as to the evidence needed to substantiate his claim was
satisfied, and the Board must now examine whether the duty to
assist was satisfied. For claims for service connection, the
duty to assist includes obtaining relevant records.
38 C.F.R. § 3.159(c). In the present case, the claims folder
contains all available service medical records, private
medical records, VA medical records, and VA examination
reports.
The Board notes that additional private medical records dated
from January to April 2004 were received during the November
2005 Board hearing along with a waiver of RO consideration.
The Board also notes that during the November 2005 hearing,
the veteran requested another search be made for the ship
logs of U.S.S. Long Beach from October to November 1968. In
August 2003, the RO requested the National Archives and
Records Administration (NARA) conduct a search of the U.S.S.
Long Beach's ship logs from January 1968 to December 1969 for
evidence of an injury to the veteran's right toe. Late in
August 2003, NARA responded that there was no information
pertinent to an injury suffered by the veteran aboard U.S.S.
Long Beach. Further, NARA wrote that if the injury was
significant, the information would be recorded in the
veteran's service medical records. Given the August 2003
negative response from NARA, the Board finds that the
veteran's request to narrow the search from January 1968
through December 1969 to October through November 1968 would
be fruitless. The veteran has not identified any other
outstanding evidence to be obtained, and the record does not
reflect any outstanding evidence. Accordingly, the Board
finds that VA has satisfied its duty to notify and to assist
pursuant to the VCAA, see 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2005), and the Board will proceed
with an analysis of this appeal.
Analysis
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(a) (2005). Generally, service connection requires
evidence of a current disability with a relationship or
connection to an injury or disease or some other
manifestation of the disability during service. Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
A disorder may be service connected if the evidence of record
reveals that the veteran currently has a disorder that was
chronic in service or, if not chronic, that was seen in
service with continuity of symptomatology demonstrated
thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet.
App. 488, 494-97 (1997). In addition, certain chronic
diseases, including hypertension, may be presumed to have
incurred during service if they become disabling to a
compensable degree within one year of separation from active
duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more
that one year after discharge may still be service connected
if all the evidence, including pertinent service records,
establishes that the disorder was incurred in service. 38
C.F.R. § 3.303(d).
Where the determinative issue involves medical causation or a
medical diagnosis, there must be competent medical evidence
to the effect that the claim is plausible; lay assertions of
medical status do not constitute competent medical evidence.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
1. Hypertension
The Board finds that service connection for hypertension is
not in order. Initially, the Board notes that there is
evidence of current hypertension. However, there is no
connection shown between the veteran's current hypertension
and his military service.
During the November 2005 Board hearing the veteran testified
that he was first diagnosed with hypertension while in
service, in approximately 1965. However, the veteran's
service medical records are negative for a diagnosis or
treatment of hypertension. The veteran's pre-service
commissioning examination report in September 1964 shows a
blood pressure reading of 134/74. Blood pressure readings
while on active duty were as follows: December 1965 -
120/80; October 1968 - 132/80. The veteran's separation
examination report in October 1970 shows a blood pressure
reading of 120/80. Hypertension was not diagnosed during
service or within the first post service year.
Hypertension must be confirmed by readings taken two or more
times on at least three different days. The term
hypertension means that the diastolic blood pressure is
predominantly 90 mm. or greater, and isolated systolic
hypertension means that the systolic blood pressure is
predominantly 160 mm. or greater with a diastolic blood
pressure of less than 90 mm.. 38 C.F.R. § 4.104 Note(1) to
Diagnostic Code 7101 (2005). At no time during service did
the veteran have a diastolic blood pressure of 90 mm. or
greater or a systolic blood pressure of 160 mm. or greater.
The veteran was discharged from service in October 1970. The
first showing of hypertension in the record is dated
approximately 30 years after the veteran's discharge from
service. VA outpatient treatment records dated from January
2002 to June 2002 show a history of hypertension for "about
two years." Also, private treatment records dated in April
2001 show an assessment of hypertension.
The Board must note the lapse of many years between the
veteran's separation from service and the first treatment for
the claimed disorder. The United States Court of Appeals for
the Federal Circuit has determined that such a lapse of time
is a factor for consideration in deciding a service
connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333
(Fed. Cir. 2000).
In sum, the Board finds that there is no competent evidence
in the record showing that hypertension was present in
service or is otherwise related to the veteran's military
service. There is no evidence of hypertension in service,
only slightly elevated blood pressure readings in September
1964 and October 1968. Also, there is no diagnosis of
hypertension within one year from service. The first
diagnosis of hypertension appears to have occurred
approximately 30 years after service. While the veteran
alleges that his current hypertension is related to service,
he is not competent to offer an opinion as to the etiology of
his high blood pressure. Grottveit, 5 Vet. App. at 93;
Espiritu, 2 Vet. App. at 494. Therefore, the preponderance
of the evidence is against the claim for entitlement to
service connection for hypertension.
2. Residuals, Fracture Right Great Toe
The Board finds that service connection for residuals,
fracture right great toe is not in order. Initially, the
Board notes that there is evidence of a right great toe
disorder. However, there is no connection shown between the
veteran's current right great toe disorder and his military
service.
During the November 2005 Board hearing, the veteran testified
that he injured his right great toe while climbing a ladder
aboard the U.S.S. Long Beach in October 1968, and was treated
for this injury by doctors at sick bay aboard the ship. The
veteran claims that he remembers this date because he kept a
diary of where he was during service. He stated that
according to his diary, the ship was docked in Hong Kong in
October 1968 and he remembered walking around Hong Kong with
a taped, painful foot. Despite his testimony, the veteran's
service medical records are negative for an injury to the
right great toe in service, and the October 1970 separation
examination shows "normal" feet. Moreover, as was stated
earlier, and August 2003 letter from the NARA shows that the
U.S.S. Long Beach's ship do not reference such an injury.
The veteran was discharged from service in October 1970. The
first showing of a right foot disorder in the record is dated
approximately 34 years after the veteran's discharge from
service. Private medical records dated from January 2004 to
April 2004 show a right foot disorder. Again, the Board must
note the lapse of many years between the veteran's separation
from service and the first treatment for the claimed
disorder. Also, as was stated earlier, such a lapse of time
is a factor for consideration in deciding a service
connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333
(Fed. Cir. 2000). While a January 2004 record shows a
history of right foot pain for over 30 years, this history
was obtained by the veteran. Although the veteran is
certainly competent to report his complaints of pain, this
lay history is not transformed into competent evidence merely
because the transcriber happens to be a medical professional.
LeShore v. Brown, 8 Vet. App. 406 (1995).
In sum, the Board finds that there is no competent evidence
in the record showing that the veteran's current right foot
disorder is related to his military service. There is no
evidence of trauma to the right foot in service. Also, the
first showing of a right foot disorder is dated in 2004,
approximately 34 years after service. While the veteran
alleges that his right foot disorder is related to service,
he is not competent to offer an opinion as to the etiology of
his claimed disorder. Grottveit, 5 Vet. App. at 93;
Espiritu, 2 Vet. App. at 494. Therefore, the preponderance
of the evidence is against the claim for entitlement to
service connection for residuals, fracture of right great
toe.
Although the veteran requested a VA examination in his
February 2003 notice of disagreement, the Board declines to
obtain a medical nexus opinion for either the hypertension of
right great toe issues because there is no evidence of either
occurrence in service or for 30 years following service.
Thus, while there are current diagnoses of hypertension and a
right great toe disorder, there is no true indication that
they are associated with service. See Charles v. Principi,
16 Vet. App. 370 (2002). Indeed, in view of the absence of
abnormal findings in service, the negative examination
performed at separation from service, and the first clinical
suggestion of the claimed disorders 30 years after active
duty, relating either the veteran's hypertension or his right
great toe disorder to his service would be entirely
speculative. Service connection may not be based on a resort
to pure speculation or even remote possibility. See 38
C.F.R. § 3.102 (2005). The duty to assist is not invoked,
even under Charles, where "no reasonable possibility exists
that such assistance would aid in substantiating the claim."
38 U.S.C.A. 5103A(a)(2).
Accordingly, for the reasons stated above, the Board finds
that the preponderance of the evidence is against the claims
for service connection for hypertension and a right great toe
disorder, and there is no doubt to be resolved. See Gilbert,
1 Vet. App. at 55.
ORDER
Service connection for hypertension is denied.
Service connection for residuals, fracture of right great toe
is denied.
____________________________________________
LAURA H. ESKENAZI
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs